Protesters hold up their red-painted hands behind Secretary of State John Kerry as he testifies on Capitol Hill in Washington, September 4, 2013, before the House Foreign Affairs Committee hearing on Syria. (AP Photo/ J. Scott Applewhite)
Among the many questions the Obama administration has been unable or unwilling to answer regarding its plans for military strikes in Syria is what happens if Congress refuses to authorize the use of force.
It’s a question that should be answered before, not after, a vote occurs in Congress, because it will clarify whether lawmakers are now engaged in the binding decision-making process required by the Constitution, or whether they are merely being used to lend an air of domestic legitimacy to military action that would violate international law.
Senator Rand Paul made the point yesterday near the end of the hearing before the Senate Foreign Relations committee, which heard testimony from John Kerry, Director of Defense Chuck Hagel and Chairman of the Joint Chiefs of Staff Martin Dempsey. Paul asked Kerry whether the president would abide by Congress’ vote. “I don’t know what the president’s decision is,” Kerry answered, “but I’ll tell you this …he still has the constitutional authority and he would be in keeping with the Constitution.”
Paul objected: “If we do not say that the Constitution applies, if we do not say explicitly that we will abide by this vote, you’re making a joke of us. You’re making us into theater, and so we play constitutional theater for the president. If this is real, you will abide by the verdict of Congress. You’re probably going to win. Just go ahead and say it’s real, and let’s have a real debate in this country and not a meaningless debate that in the end you lose and say, ‘Oh well, we had the authority anyway, we’re going to go ahead and go to war anyway.’ ”
Putting his face in his hand, Kerry said, “Senator, I assure you there is nothing meaningless and there is everything real about what is happening here.”
Paul interrupted, “Only if you adhere to what we vote on, only if our vote makes a difference, only if our vote is binding is it meaningful.”
Since President Obama announced his decision to request authorization from Congress, the message coming from the administration has been that Congress’s vote, while important politically, is essentially insignificant from a legal perspective. House Minority Leader Nancy Pelosi made that distinction yesterday after a meeting at the White House. “I don’t think congressional authorization is necessary, but I do think it is a good thing, and I think we can achieve it,” she said.
Moreover, Pelosi argued that there is precedent for a chief executive to proceed with military strikes even after they have failed to achieve congressional authorization. “In 1999, President Clinton brought us all together, similar to this meeting here…to talk about going into the Balkans and the vote was 213-213 [in the House],” Pelosi recounted. “He went. And you know what happened there.”
Contrary to the administration’s position, constitutional scholars argue that the president has no authority to initiate airstrikes without the approval of Congress, and that there is in fact no precedent for doing so in defiance of a clear rejection by Congress of a request for authorization. “The president does not have authority under the Constitution to launch a military attack on another country absent an emergency created by the imminent threat of an armed attack on the United States. So, whatever his claim, the reality is that what he is doing is constitutionally required,” said Michael Glennon, a professor of international law at Tufts University’s Fletcher School of Law and Diplomacy. “The constitutional case against presidential power would be strengthened even further by a rejection of authorization.”